Tucker v. Aiken

7 N.H. 113

• Court: Superior Court of New Hampshire
• Decided: December 15, 1834
• Status: Published

Opinion

Parker, J.

The statute of July 7, 1827, provides “ that “ the inhabitants of the several towns in this State shall “ annually exhibit to the selectmen a just and true account “ of their polls and estates rateable by law. And the select- “ men shall give warning at some public meeting, or post “ up advertisements at some public place or places in their “town, or in some other way give notice to the inhabitants “ of the time and place in the town when and where they “ will meet to receive such account; or the selectmen may “ make personal application to the respective inhabitants of “ the town for an account of their polls and rateable estate, “ or in any manner that the town at a legal meeting may “ direct.”

It then enacts, that “ if any person shall neglect, after “ being duly notified, or shall refuse when called upon in “ person by any of the selectmen, to give a true account of “his poll and rateable estate, on oath if required,” "the “ selectmen may set down to such person or persons as “ much by way of doomage as they shall judge equitable, “and make the assessment accordingly.”

And it is further enacted, “ that if any person in giving “an account to the selectmen of his estate rateable by law, “shall not give in the whole of his estate so rateable, but “ shall conceal some part thereof from the knowledge of “ such selectmen, they may for any estate so concealed and “not given in, upon discovery of the fraud, rate such person “ in all taxes of that year, four times as much as such estate, “ if given in by the owner, would by law have been rated “ or taxed.”

The course to be pursued under these provisions of the statute, is very clear. The selectmen are in some way to give notice to the inhabitants of the time and place when and where they will meet to receive an account of their polls and rateable estates, or to make personal application to them for such account.

If any person upon such notice or application neglects or refuses to give in an account of his rateable estate, or, having given in one, does not if required make oath to the truth of it, the selectmen may set down to such person, by way of doomage, as much as they shall judge equitable ; and they may do this by entering in the invoice such property as they believe such person possesses, or such amount as they believe he ought to be taxed for, designating it as doomage, and proceed to make the assessment upon it in the same manner as if it had been given in by the individual as the account of the taxable property owned by him. Having given in no account of his property, or, which is the same thing, having refused or neglected to make oath to the truth of the account given, being required so to do, the selectmen are authorized to make up an invoice for him, such as they believe to be just, and to tax him upon the invoice so made jjp.

If the individual gives in an account of his property, and no oath is required, or if, being required, he makes oath to its truth, the selectmen are not in such case authorized to set any thing down by way of doomage, but must tax him according to the account he has given, unless they discover that he has not given in the whole of his taxable property.

If after he has given in an account they ascertain that he has not given in a true one, but has fraudulently concealed some part of his property, they are authorized, upon the discovery of such fraudulent concealment, to rate him upon such property four times as much as the estate so concealed if given in would have been taxed ; and this they may do by setting down the estate given in by him, and then inserting the estate concealed, designating it as such, and entering it at four times its ordinary taxable value. Perhaps there may be other modes in which such fourfold tax may be assessed, but this is immaterial at the present time.

In this case the selectmen did not assess the plaintiff upon that clause of the statute. Nor did they assess him according to an invoice given in by him; but believing him to possess property for which he ought to be taxed, they entered that property in the invoice, with other property which he had stated, and assessed the tax upon the invoice so made up.

This was in effect dooming him. It was setting down to him such sum, or property, as they judged equitable ; and their right so to do this depends upon the question, whether the plaintiff, when applied to, did in fact give in an account of his estate rateable by law. If he did, as there was no neglect to make oath, none having been required, the act of the selectmen in dooming him, in a case where such authority did not exist, would be illegal, and the plaintiff entitled to recover.

Upon this question there can be no doubt.. The plaintiff did not give in an account of his estate. He was applied to by the selectmen, and it became his duty to give in a full and true account: such an account that an oath could be taken of its truth. He proceeded to give in an account of a portion of his property, but when he came to his bank stock and money, instead of stating what he had — instead of proceeding and completing the account — he said he was taxed high enough the year before, but if it would be of any advantage in taxing others correctly, he was willing his invoice should be raised five dollars.

It is apparent that this was not giving an account of his bank stock and money. Had he been required to make oath, and been sworn to the truth of the account thus given in, he would have testified, in effect, relative to his bank stock and money, that he was taxed high enough, in his opinion, last year, but was willing his invoice should be raised five dollars, if it would be of any advantqge in taxing others ; and not that he had any particular amount of bank stock or money. Had he been sworn in the first instance to give in a true account of his rateable estate — and he might have been required to make oath in that mode — such a statement as he made would not have been a compliance with the obligation imposed by the oath. '*

There does not appear to have been that fraudulent concealment which the statute contemplated when it authorizes the assessment of a fourfold tax. That is to be done where the individual gives in what purports to be a complete account, such an account as may be sworn to, but conceals a portion of his property. This is a case of palpable neglect or refusal to give an account, because the plaintiff did not complete it.

And it can make no difference that the selectmen did not object, or require him to take an oath. They had made due application to him. It became his duty to give an account. If he did not do this they were not bound to urge him or threaten him. Their right to doom for want of an account became complete when he evaded giving one ; and if they thought it equitable, from information acquired afterwards, that he should be assessed for any particular amount of bank stock, they were justified in making the entry accordingly. Had the plaintiff actually given in an invoice, a very different case might have been presented.

It thus becomes immaterial whether the plaintiff had or had not the amount of bank stock for which he was taxed. If, in the exercise of the discretionary power which the statute gave them, the selectmen had assessed him for much more than he actually possessed, there is no evidence that the assessment was made from any malicious or improper motive — and the plaintiff could have no reason to complain.

But I am of opinion that the plaintiff was liable to be taxed for his interest, to the amount of $7000, in the bank shares which he had conveyed to the bank to secure the payment of the residue of the capital stock. He was in fact, notwithstanding this, the owner of bank stock to that amount. It must have been so understood by him and by the corporation. The transaction was in the nature of a pledge, with a power to sell on a certain contingency, and to appropriate sufficient from the avails to pay what might be due to the bank.

Whether regarded as a pledge, or a mortgage, the property had not become absolute in the bank on the first of April, 1831, and the payment of the other half of the stock would have relieved it from the incumbrance. The plaintiff had then, at that time, an interest in those shares, as an owner, to the amount of the sum he had paid upon them. 2 Pick, 249, Gordon vs. Mass. F. & M. Ins. Co. ; 16 Mass. 275, N. E. Ins. Co. vs. Chandler.

The form of the paper issued to him can make no difference with the case. That was merely evidence of his ownership, and the terms of it. If the plaintiff had paid in to the amount of one half of the stock, and taken no certificate whatever, and by the rules of the corporation was to receive none until he paid the residue, he would not have been the less an owner.

Upon any other principle, if the other subscribers had, like the plaintiff, paid in but half the amount upon their stock, and taken similar certificates, the bank itself — the incorporate existence — would have been the owner of all the stock : and we should have presented to us the anomaly of a bank without any stockholders — a corporation without a corporator.

Nor is the circumstance that the plaintiff was at the time a surety upon certain notes, and the bank, in case his stock had been sold, might have applied a part of the proceeds to the payment of those notes, of any importance.

The only error in this part of the case was that the selectmen did not doom the plaintiff enough, as he had an interest to the amount of .$'800 in other shares, for which he was not taxed.

Several exceptions have been taken to the vote of the town for raising money.

It has been contended that the vote is illegal because the article upon which it is predicated is insufficient — the term legal purposes being, it is alleged, indefinite.

The statute of June 28, 1827, requires the selectmen to insert in the warrant for a town meeting, the intent and design of such meeting, and the subject matter of all business matters and things to be considered and done at said meeting, and provides that “ nothing done at said meeting, hold- “ en by virtue of said warrant, shall be considered as good “ and valid in law unless the subject matter thereof shall " have been inserted as aforesaid.” N. H. Laws, 451.

This is all the requisition of the statute. It is no where enacted how specific the articles of the warrant shall be. farther than this : they must contain the intent and design of the meeting, and the subject matter of all business to be considered and done. If the article under consideration gives information of the subject matter to be acted on there was a compliance with the provisions of the statute; and we think there can be no doubt of this.

The same statute provides that towns “may grant and “ vote such sums of money as they shall judge necessary “for the support of schools, school-houses, the maintenance “ of the poor, for laying out and repairing highways, for “ building and repairing bridges, and for all the necessary “ charges arising within the town.”

The article in question sets forth that the town was called together to act, among other things, upon the subject of raising money for the support of schools, of the poor, repairing bridges and highways, the payment of the just debts of the town, and other legal purposes — that is, other purposes for which towns may lawfully raise money : or in other words, according to the language of the statute, for the necessary charges arising within the town. This gave the inhabitants full knowledge of the subject matter upon which they were called to act : and if the article hacl been in terms, ! for the payment of town charges,’ or with still greater particularity, ! for the payment of the town officers, and all other necessary expenses for which the town may be liable,’ the inhabitants would have had no more precise and definite information of the subject matter than they had by the article as penned.

It is farther said that the vote is illegal because it provides for raising a sum in gross for the current expenditures of the town, without designating each particular object.

Towns probably often do, in their votes, specify particular sums for some of the, principal objects of expenditure, such, as schools, highways, support of the poor, and town charges. This is a convenient mode of ascertaining the whole amount necessary to be raised, as estimates are usually made of the amount which each of such objects is likely to require.

But, excepting the money raised for schools and highways, it is not known that it has ever been the practice to require that the sums ho designated should he kept separate and distinct. so that, in ease of a deficiency in the amount raised for one, and an excess in that voted for another, the constituted agents could not apply the whole of the funds raised to the whole necessary expenditure ; and we are not able to discover any good which would result from requiring towns to make such appropriations specific, and keep them distinct. INo reason for it Iras been suggested in the argument. To power of towns to raise money is very limited, and the clanger of abuse very small. The amount which it may become necessary to expend for the support of the poor, and for defraying other ordinary charges, depends upon contingencies: and we are not aware that these sums are ever assessed separately, even if specific sums are voted. It is believed they are usually assessed under the denomination of - town tax,” in a single column.

In relation to the money raised for schools, that is usually assessed by itself, and the appropriation kept distinct from other assessments — the law requiring a certain sum to be appropriated for that purpose, and giving towns power to raise a further sum ; and it is doubtful if there is any legal mode of ascertaining the sum proper to be expended for that purpose, except by the requisition of the statute, or the vote of the town.

For the repair of highways also there should be a separate vote, and a distinct amount, (N. //. Laws, 578,) to be paid in labor — unless the town makes a different order.

Another exception which has been taken upon this part of the case, is, that it does not appear by the vote whether the sum thus raised was intended to be inclusive or exclusive of the sum which the selectmen were by law bound to assess for the support of schools.

By the statute of July 6, 1827, the selectmen “ are empowered and required to assess annually the inhabitants of their respective towns, in a sum to be computed at the “ rate of ninety dollars for every one dollar of their propertion for public taxes for the time being, and so for a greater or less sum ; which sums, when collected, shall be appropriated to the sole purpose of keeping an English school “or schools within the towns,” &c. N. If. Laws, 427.

The selectmen are bound to make this assessment if a town should not vote to raise any money for the support of schools ; but towns may, if they think proper, vote to raise a larger sum than the selectmen are thus bound to assess ; and with a commendable zeal in the cause of education this is often done.

The vote in this case admits of the construction that the portion of the article relating to raising money for schools was not acted on — that, by “ the expenditures of the current year”, the town intended what are often denominated “ town charges”, or the subject matter of what is usually called the “ town tax” ; and it is very probable that this was the understanding of the town on the passage of the vote.

But whether the town intended that construction, and did not in fact act upon that part of the article relating to schools, or whether it was contemplated that a portion of the $>2000 raised by the vote should be appropriated for schools, in addition to the sum the selectmen were bound by law to assess, there seems to be no valid objection to the legality of the vote. There would be no illegality in omitting to act upon a part of the article, and acting upon the residue ; and if it was intended that a part of the $2000 should eventually be appropriated for schools, and if it should be held that the selectmen could not properly apply any part of it to that object without a farther vote, because they are not made the judges how much ought to be expended for education, still it was competent for the town by a subsequent vote to designate and appropriate such portion of it as might be deemed advisable to that purpose, in addition to the sum the selectmen were bound to assess; and if no such appropriation was afterwards made, the whole might lawfully be applied to the general expenditures of the town. The money would he applied to the use of the town for lawful purposes, and no injustice would be done.

If a portion was afterwards directed to he applied to the support of schools, and apportioned among the several districts according to the statute, it would come to the same result as if the amount had been designated in the first instance ; although it is doubtless the better mode to raise specific sums for this object, in the usual manner.

Whether, therefore, the intention was that any of the money thus raised should be appropriated in support of schools or not, the plaintiff has no cause of complaint. If the selectmen assessed the amount required by law to be appropriated to schools, in addition to the $2000 voted tobe raised, they were justified in so doing, because the law was imperative on them to assess to that extent; and the vote not having in terms appropriated any particular sum for schools, any portion of it intended for that purpose must be taken to be in addition to the sum the selectmen were required to assess. If they assessed only the $2000 the plaintiff cannot object, in this action, that he has been required to pay less than he might have been lawfully assessed.

It is farther objected, that Stowell, who acted as collect- or, had no authority to collect the tax, because the moderator of the meeting at which he was elected was not sworn, and because the office of collector was set up at auction, and the lowest bidder elected ; and we have given to this objection a very attentive consideration.

Of the*impropriety of putting up any office at auction I can entertain no doubt. The circumstances of this case plainly show this, as the town insisted that Adams, who bid off the collection in the first instance, should serve, and refused to elect Stowell ; but when Adams persisted in declining, and Stowell himself became the lowest bidder, he was elected. The inference is irresistible, that the town did not deem S to well so suitable a person as Adams, but elected him finally, because he would officiate for a smaller compensation than any one else.

The direct tendency of such a practice is to introduce unsuitable persons into public employment — to induce the .electors to give their suffrages to him who will work cheapest, instead of him who is best qualified. And if an office which is supposed to be onerous, and to deserve compensation, may be offered to him who is disposed to serve for the lowest wages, it is not apparent why those to which some honor is attached may not be offered to him who is willing to give most for the privilege of executing them. The formality of an election may be had afterwards, in the one case as well as in the other.

In fact, the office of collector has, in one instance at least, been deemed such an object of competition as to produce an offer of a nominal, even if it was not an actual, consideration duly paid. In a case recently tried in another county, the following was among the records produced : “ Voted, “ that the collectorship should be set up to the best bidder. “ J-M-M-agreed to give one and a half mugs “of toddy for the privilege of collecting.”

No evidence of the impropriety of setting up the office at auction more conclusive than this would be desired or furnished: and there is no necessity for such a practice. The town may fix upon a suitable compensation in the first instance ; or it may be left for such compensation to be made afterwards, as the services rendered shall appear to demand, which is the usual course in relation to other town officers ; and in either case there is no inducement to elect an unsuitable person. Under the existing laws, if a town neglect to choose a collector, the selectmen may make an appointment, and allow the person appointed “ a reasonable sum for his trouble.”

I am clearly of opinion, therefore, not only that putting the office at auction is improper, but that an election, under such circumstances, when properly drawn in question, must be held to be illegal. ,.

The defendants, however, contend that Stoweil in this case came into office under colour of an election, and was therefore an officer de facto; that, as such, they were bound to commit to him the list of taxes assessed; and that they were not authorized to judge of the legality of the election,. and cannot be made answerable on this account, even if the election, in a proper proceeding against Stoweil, might have been avoided.

The general principle undoubtedly is, that the acts of an officer de facto are valid, so far as the public or the rights of third persons are concerned : and that the title of such an officer cannot be enquired into in any proceeding to which he is not a party. 7 Johns. R. 549, The People vs. Collins; 9 Johns. 135, McInstry vs. Tanner; 3 N. H. Rep. 408, Moore vs. Graves ; 5 N. H. Rep. 222, Morse vs. Galley; 1 N. H. Rep. 266, Jones vs. Gibson ; 9 Mass. R. 231, Fowler vs. Bebee ; 15 Mass. R. 170, Nason vs. Dillingham ; ditto 180, Bucknam vs. Ruggles ; 1 Salk. 96, Parker vs. Kett; Com. Dig. Franchise F. 29 ; Hawk. P. C., b. 1, c. 3, sect. 1, 3.

But proceedings founded upon an assessment and collection of taxes have been supposed to form an exception to this rule ; or rather a different rule has been supposed to be applicable to such proceedings.

The principle is expressly laid down, that in order to maintain a title to lands sold for taxes, or to justify a distress, “ every substantial requisition of the law must be shown to have been complied with.” 4 Peters' S. C. R. 359, Ronkendorff vs. Taylor's lessee.

And it seems to have been understood that this principle included and required proof of.the due election and qualification of all the officers concerned in the assessment and collection of the tax. 15 Mass. 181 ; ditto 177 ; 10 Mass. 113, Colman vs. Anderson; 11 Mass. 480, Welles vs. Battelle; 14 Mass. 145, Pejepscut Proprietors vs. Ransom ; 2 Green. 218, Hale vs. Cashing.

In Proprietors of Cardigan vs. Page, 6 N. H. Rep. 182, it was argued by counsel, and the position sustained by the court, that the setting up of the office of collector at auction was improper, and that an election under such circumstances was contrary to sound policy, and illegal; and the rule indicated in the authorities last cited was supposed to furnish the correct principle. The circumstance that the collector was not a party to the case was not there adverted to or considered.

There seems to be no sound distinction between the acts of a collector de facto, in making a distress, or sale of property in order to satisfy a tax, and those of a sheriff in the seizure of property upon attachment, or in the way of an execution.

The selectmen, who commit the list of taxes to the collector, may have, it is true, more knowledge of the circumstances under which he was chosen and came into office than individuals ordinarily have respecting the particular circumstances attending the appointment of a sheriff or his deputy ; but still it may impose quite as great a hardship to require them to judge at their peril of the legal validity of those proceedings, and make them answerable personally for irregularities which did not originate with them — which thejf could not control — and respecting the legality of which they have but inadequate means of forming an opinion.

If the town proceeds to elect, their duty requires them to commit the list of taxes to the collector chosen, if the election be legal — and they have not the power to try the legality of the election — and to enter a judgment of ouster. If they are required to judge of the validity of the proceedings, they must do so without trial, and at their own peril if they mistake.

If there has been no election — no pretence of a due appointment — and they commit the list of taxes to a mere usurper, there may be a good foundation for holding that this is such an unauthorized act as should make them liable for all after acts done under colour of the command which they had given. 7 Cowen 269, Reynolds vs. Orvis.

But when they commit their warrant to one whose election is on the record, and who claims the right to execute the duties of the office, there seems to be no greater reason why they should be held responsible on account of any irregularity in that election, than there is that a plaintiff should suffer who has committed his writ to one who is de facto, but not de jure, a sheriff. It seems sufficient to hold them liable to show the validity of their own election, and the legality of their own acts ; and upon consideration of all these circumstances I am of opinion that there exists no sound principle for the application of a different rule in relation to officers who assess and collect taxes, from that applied to other officers who have duties to perform analogous in their nature.

If in such cases irregularity or illegality is supposed to have occurred in the election of any town officer, the validity of his election may be enquired into on a proper proceeding to remove him from office. 2 Strange 1090, Rex vs. Lisle; 9 Mass. 235, Fowler vs. Bebee; 10 Mass. 290, Commonwealth vs. Fowler. And if this may be supposed to furnish inadequate relief, because the term of office is of such short duration as to expire before such process could probably be brought to a conclusion, .a suit against him for any act, affecting the person or property of another, will compel him to show himself legally entitled to act, or he must be held answerable for such acts, done under colour of an office to which he had not a valid title. 2 N. H. Rep. 202, Johnston vs. Wilson; 3 N. H. Rep. 515, Bishop vs. Cone; 1 Pick. 111, Thayer vs. Stearns; 3 Green. 298, Massey vs. White. What would be the proper measure of damages in such case is not now a subject of enquiry. It sufficient provision is not already made, by law, to ensure satisfaction of any judgment which may be obtained against any such officer, the legislature is the proper body, and has full power to provide a further remedy.

I am, therefore, of opinion that the moderator and collector were officers de facto, having come into their offices by colour of an election, and that this action cannot lie sustained against the selectmen, on account of the neglect of the moderator to take the oath of office, or on account of the illegal proceedings of the town in setting up the office of collector at auction, and their electing him who was most desirous of attempting to discharge its duties. And no injustice can accrue to the plaintiff from this conclusion, as it does not appear that he has in fact suffered by reason of these irregularities.

Richardson, C. J.

1 am of opinion that the verdict m this case cannot be sustained ; but I shall confine my remarks to the two last points, having nothing to add to what my brother Parker has said on the other points.

It is contended that StowelPs appointment as collector must he treated in this case as altogether null and void. 1. Because the office was set up at auction, and he appointed merely because he was the lowest bidder; and 2d, because ho was chosen at a meeting the moderator of which was not sworn.

In order to settle the questions which these points in the case present, it is necessary to consider who is to be considered as an officer de facto, and who a mere usurper, and when and how the authority of an officer de facto can be called in question.

In order to constitute an officer de facto, there mast be some colour of right — some pretence or claim of title by an election or appointment.

He who assumes to execute the duties of an office without any colour of title is a mere usurper ; and the acts of a mere usurper are void in all respects.

But the acts of an officer de facto are valid when they concern the public or the rights of third persons, who have an interest in the acts done:.

And in general the validity of the acts of an officer de ft do cannot be called in question indirectly in a suit to which he is not a party.

There arc many cases in the books where these principles have been explained and applied.

Tn the case of the Abbot of Fountain in the Year Books, 9 II. 6, folio 33, one who was in the office of abbot of a religious house under colour of an election, when he in truth had only a minor part of the votes, made an obligation as abbot for goods sold for the use of the house — it was hold that this obligation was not voidable by the true abbot who was elected by a major part of the votes, when he recovered the office, because he who made the obligation had colour of title, having had some votes, and those who sold goods to the house were not bound to examine his title to the office.

In Knowles vs. Luce, Moor 112, it was said there was a distinction between copyholds granted by a steward ivho had colour but no right to hold a court, and copyholds granted by one who had neither colour nor right; and that a grant by a steward who had only colour of right to hold a court was valid, because the tenants were not bound to examine his authority, nor was he bound to give them an account of it, Comyri’s Digest, Copyhold c S,

The case of Leach vs. Howel, Cro. Eliz. 533, was an information for bringing certain goods into the country by wa.y of merchandise, “ the custom and subsidy for them “ due and not being paid nor agreed for with the customer “ of London, nor in any other port, nor with their deputy.” It was found in a special verdict that the goods were brought into the country, and an agreement made at the customhouse in Penryn with Richard Enys, who had exercised there the office of deputy of J. Basset, who was a deputy of T. Peyton, the customer there, to answer to the queen all customs and duties. It was objected, that the agreement was not valid because made with a deputy of a deputy. To this it was answered, that Enys was deputy in facto, and although he were not deputy de jure, that shall not prejudice the merchants, for it would be mischievous to them to examine by what authority the officers of the customs sit and make their compositions. And of this opinion were all the barons, and judgment was given for the defendant.

In Harris vs. Jays, Cro. Eliz. 699, the case was that the queen’s auditor and surveyor for the county of Northampton appointed a steward for one of the manorsand lie kept the court and granted by copy lands which had escheat-ed to the queen for felony. The question was whether the grant was good ?

It was decided that the auditor and surveyor had no authority to appoint the steward, and that the grant by the steward was void. It was conceded that the law favors acts of one in reputed authority, and that acts of necessity done by an officer de facto are valid; but the grant in that case was held to be void, because it was a new grant in prejudice to the queen, merely voluntary, and which the steward was under no necessity to make. Co. Litt. 58, b. ; 4 Coke 30 ; Cro. James 552, O'Brian vs. Knivan ; 1 Salkeld 96.

The case of The King vs. Lisle, Andrews 163, and 2 Strange 1090, was an information in the nature of a quo warranto, brought against Lisle for acting as a burgess of Christ Church, in the county of Southampton. There were two questions in the case : 1st. Whether one Goldwire, who presided at the election of the defendant, was a mayor de facto: and 2d. If he was, whether the presiding of a mayor de facto was sufficient to make a title in the defendant against the crown.

As to the first point, it was found that Goldwire was never elected mayor, nor had any right or title to the office — but under pretence and colour of being elected, he was sworn, and acted as mayor all the year.

All the judges were of opinion that Goldwire must be - taken to have been a mere usurper, and that to constitute a man an officer de facto there must be at least the form of an election, although that, upon legal objections, may after-wards fall to the ground.

It is settled that where there is an officer de facto a court will not grant a mandamus to compel a new choice, until such officer has been made a party to the proceeding, nor then unless in a very clear case. If there be any doubt, his right is to be settled by a quo warranto. 1 W. Bl. 445, The King vs. Banks ; 3 Burrows 1452 ; 4 Burrows 2008, Rex vs. Bambridge; 2 D. & E. 259, The King vs. Colechester ; 1 East 79, The King vs. Bedford.

Where a statute made provision for the appointment of justices of the peace in a certain place, and declared that no person should be authorized to act as a justice unless he should have taken certain oaths — it was held, that the acts of a justice appointed under the statute, but who had not taken the oaths, were not void ; that it was unlawful for him to act without taking the oaths, and he might be punished by indictment for so acting, but his acts were valid. 3 B. & A. 266, Margate Pier vs. Hannan.

In the case of The People vs. Collins. 7 Johnson 549, an alternative mandamus had issued to the defendant, the town clerk of Turin, to record a highway laid out and established by the commissioners of highways in the town, or show cause why he had not recorded it; and the clerk had returned, that the commissioners were duly elected, but because they had not been sworn into office, and a certificate of their oath filed in the clerk’s office, according to law, he had not recorded the said highway. Upon a motion for a peremptory mandamus, the court said, if the commissioners acted without taking the oath they were liable to a penalty, and that the town might proceed to a new choice ; but the acts of the commissioners as .such were valid as far as the rights of third persons and of the public were concerned. They were commissioners de facto, since they came into office by colour of title — and the motion was granted.

Where a deputy sheriff, who had not taken the oaths required by law, made an extent of an execution upon real estate, the extent was held to be valid. The court said that the deputy, having colour of title to the office by being duly commissioned, his acts were valid with respect to the rights of third persons who might be interested in those acts; and that the adoption of such a rule was necessary to prevent a failure of justice and great public mischief. 15 Mass. R. 180, Bucknam vs. Ruggles; Hawkins P. C. b. 1, ch. 8, sec. 3; 3 Cruisis' Digest, “ Officers,” sec. 71 — 75.

Where a coroner, who had not given bond for the faithful execution of his office, made a levy of an execution upon a pew in a meeting-house, the levy was held to be valid. 15 Mass. R. 170, Nason vs. Dillingham.

In the case of Fmoler vs. Rebee and another, 9 Mass. R. 231, the original writ was served on the 17th August, 1812, by one R. Day, as a deputy of J. Smith, sheriff of the .county of Hampden. The defendants pleaded in abatement of the writ, that the statute for erecting the county of Hampden provided that the said act should not take effect and be in force until the 1st August, 1811 ; that on the 23d May, 1811, J. Smith was appointed sheriff of the said county, there being then no such county and no such office as sheriff of the county of Hampden, and that the said Smith being so appointed, on the 14th August, 1811, assumed to appoint the said Day as his deputy. To this plea there was a demurrer.

The court were of opinion, that Smith was sheriff de facto, and that, as he was no party to the record, and could not be legally heard in the discussion, it would be contrary to natural equity and the policy of the law, to settle the question in that case whether he was sheriff de jure, and they held the plea bad without considering whether he was sheriff de jure or not,

This court adopted the same principle in Morse vs. Calley, 5 N. H. R. 222, and in Moore vs. Graves, 3 N. H. R. 408.

When a suit is brought against any person for acts which he can justify only as an officer, and he attempts so to justify them, he must show himself an officer de jure; and the legality of his appointment being thus drawn in question in a suit to which he is a party, may be regularly decided, 9 Mass. R. 235; 3 N. H. R. 513, Bishop vs. Cone.

But in such cases many presumptions are made in favor of the legality of the title to the office, where the officer appears to have acted under the appointment. Thus in Bishop vs. Cone it was held that the record of an appointment of selectmen at a town meeting, and proof that they had acted under the appointment was evidence, nothing appearing to the contrary, that the town meeting was legally holclen and that the selectmen were sworn.

But where it appeared that a collector of taxes, who had made a distress, was not sworn, the distress was held not to be legal. 2 N. H. R. 202.

The title to an office may be drawn in question directly by an information in the nature of a quo warranto, in which the officer is called upon to show by what warrant he claims to have, use, exercise and enjoy the office. 4 Cowen 100, note. The defendant in such a case must show a complete title. If he is found not to have been regularly appointed, his title fails. 10 Mass. R. 290, Commonw. vs. Fowler; 4 Burrows 2143, Rex vs. Leigh. So if regularly appointed but not sworn. 2 Mod. Cases 234; 1 Strange 582, The Mayor of Penryn's case; 9 East 252, note, Rex vs. Ellis.

Having thus shown who is to be considered as an officer d.e facto, and who a mere usurper, and how and when the authority of an officer de facto can be called in question, L shall now proceed to consider how the principles which have been thus found to be settled and established on this subject apply in the case now before us.

Stowell was chosen collector at a meeting of the town regularly holden in every respect except that the moderator was not sworn ; and the only objection to the regularity of the choice in any other respect is, that previous to the choice the office had been struck otf to him as the lowest bidder. It is then very clear that he came into office under colour of an election, so as to constitute him a collector de facto. An officer de facto is one who under colour of an election or appointment has the reputation of being the officer he assumes to be, but is not a good officer in point of law. Stowell may not have been a good collector in point of law, but he certainly had colour of election enough to make him collector de facto.

Can the irregularities in the choice just mentioned be considered as rendering the election void, so that the defendants, by committing the taxes to him to collect, may be considered as wrong doers in this ease ?

The statute simply provides that moderators of town meetings shall be sworn. Nothing is said of the effect of their not being sworn upon the proceedings of the meetings - — nor are any penalties imposed if they act without taking the oath. Whether the doings of towns can in any case be held void on that account, and if in any, in what cases, may be question of no little difficulty.

It is, without doubt, highly improper to set up town offices at auction, and choose those who will serve for the most moderate compensation. The sale of public offices is illegal. It has often been so decided. 2 N. H. R. 517; 5 ditto 196.

Setting up an office at auction in the manner the town of Derry did in this instance, has all the mischief of a sale. It has a tendency to divert the attention of the electors from the qualifications of the candidate to the terms on which they will consent to serve, and makes the choice turn upon considerations which ought not to have an influence. And if it shall be decided that the office of collector may be thus filled, it will be difficult to find any sound reason why the offices of town clerk, selectmen, and representatives in the general court may not be filled in the same manner.

A collector thus chosen is not fit to be trusted with the power to seize the goods and arrest the bodies of citizens, especially of citizens who do not concur in the choice. And if an action of trespass had been brought against Stowell for taking the goods mentioned in this declaration, he would probably have found it very difficult to show a legal defence. In such a case the legality of his election might have been examined and settled.

But he is not a party to this suit, and his legal title to the office cannot be settled. He was in the office of collector under colour of title. The defendants had no right to assume to determine the validity of his title. They were not the judges of the questions, whether the meeting of the town was illegal because the moderator was not sworn, or the choice of the collector invalid because the office had been struck off to him at auction. These were questions on which Stowell had a right to be heard in a court of justice, before they should be settled ; and they are questions which ought not to be settled in this case, where he cannot be legally heard.

I am therefore of opinion that these defendants cannot be held liable in this case on account of any irregularity in the election of Stowell, and that in committing the taxes to him to collect they did no more than it was their duty to do.

Green and lie ham. Justices, concurring in the foregoing opinions, the verdict was set aside, and a

Neto trial granted.